DCTAC Comments on the Prairie Band Shabbona Casino Project Submitted to the Bureau of Indian Affairs, February 2016 Peter Dordal Edmond Leeney Robert Purdy Lane Pickwell John Diehl Introduction The Prairie Band Potawatomi has submitted an application to have their land outside Shabbona, Illinois taken into trust for the purpose of building a class II casino. At face value, this application would seem to be farfetched, for the following reasons: • The Prairie Band's existing reservation in Kansas is 400 miles away • The proposed casino would be adjacent to one of the few larger natural areas near Chicago • The proposed casino would wreak economic havoc on DeKalb County and its rural neighbors • The proposed casino would disrupt the local community and, very likely, bring increased crime • The Prairie Band's existing Kansas casino is doing quite well All these points are elaborated below. The Prairie Band has long claimed that the real justification for their casino project is that their land outside Shabbona still has status as a reservation. In the usual telling of this story, when Chief Shabehnay lost the use of the land in question in 1849, somehow Congress never got around to reversing that part of the 1829 Treaty of Prairie du Chien that granted Shabehnay his land. But this is myth. There is no reservation now for the simple reason that there never was one. As DCTAC's historical research by James Lynch has shown, no treaty-recognized title was created by the 1829 Treaty of Prairie du Chien granting Chief Shabehnay the “use” of the land. The land is not a reservation in the sense of the definition in 25 CFR §292.2. There is no reservation While the Prairie Band's land-into-trust application may nominally be under 25 CFR §151.11 – Off- Reservation Acquisitions – we are concerned that the Prairie Band will argue, implicitly or explicitly, that the claimed reservation status of their property should still play a role in the decision. This must not happen: there has never been a reservation. The Prairie Band's 25 CFR §151.11 application must proceed under exactly the same terms as if the property they had purchased were located closer to DeKalb, Illinois, or within the Chicago metropolitan area. We grant that the Prairie Band has some historical connection to the Shabehnay parcel, but they have nearly the same connection to all of northern Illinois. Additionally, their application must proceed under exactly the same terms as if another tribe at a comparable distance were to apply to have land taken into trust. §151.11 does not allow consideration of a tribe's past historical connections to the land in question. Even if such past connections were to be taken into account, there are many other tribes with comparable historical connections to northern Illinois. None of the parties involved in the Shabehnay land issue in the 1840's and 1850's understood there to be treaty-recognized title, that is, a reservation. The US Federal understanding, following a letter written by US Attorney General Roger Taney in 1833, was that Shabehnay's land was simply a “hole”, or an exception, in the Potawatomi cession of much of northern Illinois, retaining, at best, only so- called “Indian”, or aboriginal, title. For details, see the attached document titled Analysis of Shabehnay's 1829 Title. The Potawatomi (together with other tribes) ceded in 1829 all of northern Illinois except for the land near present-day Shabbona (and two other parcels). It has long been accepted that aboriginal title is extinguished through abandonment in any form, including physical departure but also attempts at sale and death. Although the understanding of Chief Shabehnay himself was that he had title personally, in fee simple, and he could sell the land as he chose, he was mistaken. Congress had struck from the treaty the fee- simple ownership provision originally agreed to. In light of this misunderstanding, any claim must be limited to monetary compensation only. There is no “land claim” at stake here in the sense of IGRA §2719(b)(1)(B)(i). Finally, Shabehnay's band appears to have had the same understanding of the 1829 treaty as Shabehnay himself. The 1833 Treaty of Chicago required most Potawatomi in Illinois and Wisconsin to move to Kansas. Shabehnay's band did not argue, as they might have, that they were entitled by the 1829 treaty to stay, and departed voluntarily from Illinois in 1837. Complete details are in the following attached documents: • An Ethno-historical Evaluation of Land-holdings at Shabbona's Grove, DeKalb County Illinois, by James P Lynch (the “Lynch Report”, submitted to the National Indian Gaming Commission in October 2007 as part of the NIGC's legal analysis of the Prairie Band reservation claim) • Analysis of Shabehnay's 1829 Title, revised edition, by Peter Dordal Distance 25 CFR §151.11(b) addresses the “distance between the Prairie Band's reservation and the land to be acquired”. The Prairie Band's existing reservation at Mayetta Kansas is over 500 miles (driving distance) from Shabbona Illinois; the great-circle distance is 397 miles. Granting the Prairie Band permission to open an off-reservation casino in Illinois would up-end settled precedents, opening up Illinois to off-reservation-casino requests from tribes in Wisconsin, Minnesota, Michigan and Iowa. In 2009 the BIA denied the request by the Menominee tribe for an off-reservation casino in Kenosha, Wisconsin, at a great-circle distance of 164 miles from the Tribe's reservation. The letter from George Skibine, [GS09], cited, as a secondary consideration, this distance: In particular, operating a Class II gaming facility on trust land so far from the Tribe's reservation could exacerbate, not diminish, the effects of termination the Tribe has suffered by encouraging the splintering of the tribal community. The Tribe has not convincingly demonstrated why the potential negative impacts on reservation life from taking land into trust beyond a commutable distance are outweighed by the positive financial benefits of tribal ownership in a distant gaming facility. That denial was reversed in 2013 (this reversal hinged primarily on the dire economic circumstances of the Menominee in Wisconsin; see below). The letter from Assistant Secretary Kevin Washburn [KW09] states Admittedly, allowing an off-reservation casino located more than 150 miles from a reservation headquarters might not be appropriate in any other state.... This remarkable 400-mile distance is sufficient alone to disqualify the Prairie Band's proposal. Not only is the proposed Shabbona casino not in the same state as the Prairie Band's reservation, but Illinois and Kansas are not even contiguous. The Prairie Band in Kansas 25 CFR §151.3(a)(3) requires that the development be “necessary to facilitate tribal ... economic development.” The PBPN has a thriving casino in Kansas. The new casino would not be an economic necessity. In 2013, the Menominee Indian Tribe of Wisconsin finally succeeded in their land-into-trust application for property at Kenosha, Wisconsin; the approval letter from Assistant Secretary Kevin Washburn to Gov Scott Walker makes clear that a crucial factors in the Menominee's otherwise-borderline application were the “Federal Termination in the 1950s” and “a high poverty rate”. The Prairie Band, while facing legitimate Tribal needs, cannot claim a similar poverty rate. The following data are from census.gov/quickfacts: County per capita income poverty rate Menominee Co, Wi $15,201 29.1% Jackson Co, KS $25,030 10.3% In addition, the 2013 approval refers to the federal termination of the Menominee Tribe in the 1950's (that Tribe regained recognition in 1973), and the difficulty the Tribe has had recovering from this event. The Prairie Band has faced no such termination. A look at the Prairie Band's current economic development projects (at pbpindiantribe.com/vision-of- development.aspx) suggests that, while the Tribe still has significant needs, they are not of the sort driven by “a high poverty rate”: [Basic] projects have included Internet access, fiber optic, and distance-learning programs. In the Indian community these are considered luxuries, but now they will have become a central requirement for conducting business. In 2004, the installation of a cellular tower to expand cellular service on the reservation has promoted better cellular reception. These are important projects, but not comparable with the needs that led to the reconsideration of the Menominee casino in Kenosha. As a final point, it is unlikely that more than a small handful of the 400 jobs the Prairie Band has assured the DeKalb County Board the casino would create would go to tribal members. The DeKalb County Community 25 CFR §292.13(c) (from 25 USC §2719(b)(1)(A)) requires that “the gaming establishment … would not be detrimental to the surrounding community.” The core economic difficulty the casino would bring to DeKalb County is simply that it would pump several times as much money out of the county as it would bring into it. At the August 4 2015 meeting of DeKalb County's Economic Development Subcommittee, members were presented with data indicating that the casino would hire 400 employees, with a total payroll of $17 million. But a 2003 study of the Prairie Band's Kansas casino by Seitz and Darling [SD03] states that in 2002, "937 employees received wages and benefits totaling $17.4 million". Accounting for inflation, the proportional Shabbona casino payroll would be under $8 million. At the January 26, 2016 scoping hearing, the Prairie Band presented a tentative drawing suggesting the casino would have 27,000 square feet of gaming space. The Foxwoods casino in Connecticut allows about 40 square feet per slot machine (or “electronic bingo machine”); the Hollywood Casino in Aurora allows slightly more space.